Several weeks ago, I asked whether Lanny Breuer had a conflict in CREW’s FOIA suit to get Cheney’s interview in the CIA Leak Case. As I reported, Breuer represented John Kiriakou, who back in 2003 responded to Cheney’s request for information on Joe Wilson’s trip during the week when Cheney learned (from the CIA, Libby testified) of Plame’s identity. Given that two of the things DOJ is trying to protect by refusing CREW’s FOIA pertain to Cheney’s discussions with CIA, it seemed wholly inappropriate, if not an ethical violation, for Breuer to represent DOJ in its efforts to withhold Cheney’s interview.

After some persistence, I got DOJ to respond to my questions about the issue.

The two year window

Just about the only thing the Criminal Division spokesperson could tell me is that Breuer’s submission of an affidavit was not a conflict because it was submitted more than two years after his relationship with Kiriakou ended (the federal guidelines now prohibit lawyers from involvement in an issue pertaining a client they have represented in the last two years).

Before I get into what else DOJ did not tell me (or Covington & Burling, after equally persistent efforts), let’s note the timing.

As I note in a post subtitled "more than 2 years," the DOJ was making this argument almost exactly two years after Bush commuted Libby’s sentence. In fact, Breuer’s declaration was signed on the last day of the two year anniversary of Libby’s commutation (Libby’s sentence was commuted on July 2, 2007, and Breuer signed the declaration on July 1, 2009, just meeting a deadline set by Judge Emmet Sullivan). So the timing is all very close to the "end" of the Libby matter (the trial, obviously, ended much earlier, Libby dropped his appeal later). So, two years, but not much more than two years.

That’s all pretty neat timing, particularly since DOJ would not tell me the precise dates of Breuer’s representation of Kiriakou. They told me to talk to Covington & Burling, which I had already done and have done since. Covington & Burling’s spokesperson claimed–utterly implausibly–that she "hasn’t been able to find anything on that yet."

Breuer’s suitability to submit this declaration

I asked DOJ two more general questions: Whether Breuer had told the people in the Civil Division on behalf of whom he submitted this declaration that he had represented someone involved in the CIA Leak Case. And why, of all the people at DOJ who don’t have known involvement with someone involved in this case, why they picked someone who did to submit this declaration.

To the question about whether Breuer had revealed to others within DOJ that he had represented someone in this case, I got an answer familiar from the CIA Leak case itself: that they couldn’t answer anything regarding an ongoing legal matter.

And to the question about why DOJ had Breuer, of all people, submit this declaration, I was invited to look at the existing court filings and public record to see why Breuer was qualified for this.

Perhaps CREW said it best when it summarized Breuer’s appropriateness for this declaration.

Mr. Breuer does not claim to have any relevant law enforcement experience, and certainly does not purport to base his opinions upon any such experience.

[snip]

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Mr. Breuer “appeared before the grand jury . . . and invoked Executive Privilege,” a claim that was rejected by Chief Judge Johnson and that the Independent Counsel described as “interposed to prevent the grand jury from gathering relevant information.”

Yes, Breuer was once an Assistant DA, yes, Breuer co-ran Covington & Burling’s white collar defense, and yes, Breuer worked in Clinton’s White House Counsel office. But how does that give him experience on prosecuting (as opposed to protecting) high level White House officials? DOJ seems to–literally–be making the argument that its job is protecting the White House institutionally.

So we’re to believe that a guy whose most direct experience pertaining to this issue was an unsuccessful attempt to suppress testimony and representing someone in this very case was the very best guy at DOJ they could come up with to make their argument to Judge Sullivan.

Breuer’s ethical conflict (?)

All of which gets us into the larger question: does Breuer have an ethical duty to recuse himself from this matter or–barring that–reveal his past involvement in it?

Which is how I came to be reading the DC Bar rules this morning. Those state:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

Now, there’s a lot more in the rules (and I appreciate the input from those of you who are lawyers, particularly if you’re in DC). But what Breuer has to be maintaining in participating in what I think easily qualifies as a "substantially related matter" is that the interest of the government in suppressing Cheney’s interview is not materially adverse to Kiriakou’s interest and/or Kiriakou has given consent for Breuer to submit this declaration (the rules also state that a government lawyer’s client is the agency for which he works).

So DOJ, deciding that it is in their interest to suppress Cheney’s interview, has trotted out a guy who represented someone at the CIA who may not want Cheney’s interview to come out. And on that basis, Breuer has made assertions to the Court purporting to be neutral observations about the dire consequences of the release of Cheney’s interview.

And that, ladies and gentlemen, is the approach taken by the purportedly FOIA-friendly Obama Administration.

I’m still working on follow-up of this. I’ll let you know what I learn.

Not really. Anything Bill might have done short of murder the statute of limitations will cover and I doubt Hillary is on the hook for anything that’s not financial.

Obama is protecting the progress of his agenda. Nothing more. He’s only just now realizing that he’s not going to get any GOP votes unless he gives them everything they want. And even then I doubt he’d get many.

He can pass a bill without a single GOP vote IF he can kennel the Blue Dogs who get the insurance money.

Boxturtle (Prediction: Obama is not yet done offending us in the legal arena)

I don’t doubt that Clinton’s hands are dirty. It seems to go with the territory at 1600 Pennsylvania Avenue.

No president has been able to reign in the national security state and they simply let them carry on whatever they want to do. Are the threatened or intimidated or read into the program and complicit a la the Mafia. Now that you know, you are one of us.

Statute of Limitations is always an issue when contemplating criminal charges. Always. Even in capital murder cases, you do a review to make sure you can prove that because of the statute of limitations otherwise. And this is not about Clinton, whatever involvement Bill Clinton’s administration may have had, it is not overtly relevant to these considerations.

So DOJ, deciding that it is in their interest to suppress Cheney’s interview, has trotted out a guy who represented someone at the CIA who may not want Cheney’s interview to come out. And on that basis, Breuer has made assertions to the Court purporting to be neutral observations about the dire consequences of the release of Cheney’s interview.

Reading the actual law above and doing no further research myself, I’m not sure that there is a legal conflict of interest. It LOOKS to me as though he might be clean under the rules.

Not sure Sullivan will care that much. If he decides to push back, it’ll only delay the proceedings while it’s hashed out. If it turns out there is a conflict, the filing will be withdrawn and submitted by somebody else. The end result will be six months to get us back where we are today.

Sullivan is tired of delays. I don’t think he’ll do anything to let the government drag it out longer. I’m amazed at his tolerance thus far with the government tactics.

Boxturtle (Thinks several lawyers involved should have been gaveled to a pulp)

but appearance of conflict and candor with the court in so disclosing.

And that appearance of conflict is vital to this:

Which is how I came to be reading the DC Bar rules this morning. Those state:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

So if there is informed consent from the client, then could that informed consent be COI? Very convenient for a FOIA involving Cheney.

Hey DOJ, it wouldn’t be pertinent if it was NOT an ongoing matter. Furthermore, as attorneys for the people of the US, the government, you owe a special duty of candor and propriety. The information requested is not protected and goes straight to the credibility and propriety of your affiant. Ante up.

This is like a 10,000 piece puzzle, EW, and you continue to find those little pieces that fit together perfectly. Amazing.

And here’s this:

Afghan freed from Guantanamo after 7 years to sue US government for mistreatment, lost youth
HEIDI VOGT AP News
Aug 27, 2009 06:50 EST

“The family of one of the youngest prisoners ever held at Guantanamo plans to sue the U.S. government to compensate him for mistreatment and an adolescence lost to nearly seven years in a cell, his lawyers said
Thursday.”

“1. Each State Party shall ensure in its legal system that the victim of
an act of torture obtains redress and has an enforceable right to fair and
adequate compensation, including the means for as full rehabilitation as
possible. In the event of the death of the victim as a result of an act of
torture, his dependants shall be entitled to compensation.”

The U.S. has not only failed to “ensure in its legal system etc.” but has
tried to ensure the opposite.

All, however, is not lost. Section a) of the All Writs Act, 28 U.S. Code Sec. 1651, provides:

“The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.”

He can’t win. Congress has specifically declared sovereign immunity in cases like this. He might be able to get a foreign court to give him a judgement, but it’d be ignored by America and he’d never collect a dollar.

I haven’t seen a filing, perhaps his lawyers have a novel legal theory. Certainly, BushCo generated enough of those! Or perhaps what the suit really is saying is “We know something embarassing that will interfere with Obama’s agenda. Pay us to go quietly away”.

Boxturtle (Still, anything that shines light on BushCo is a good thing)

WASHINGTON (AFP) – “The Pentagon has hired a private firm to investigate reporters seeking to embed with US troops in Afghanistan in order to find out how best to influence their coverage, a report said Wednesday.

“Stars and Stripes, a military journal partly funded by the Pentagon but editorially independent, said private contractors had been brought in by the US Defense Department to evaluate journalists.

“The Rendon Group rates reporters’ previous work as “positive,” “negative,” or “neutral,” and offers advice on how their coverage might be influenced, the report said.”

CIA contractors will be a focus of interrogation investigation
Long-dormant cases involving contractors’ role in CIA interrogations will gain new scrutiny by the federal prosecutor named this week to review agency tactics.
By Josh Meyer
August 27, 2009

“Reporting from Washington – The Justice Department prosecutor appointed this week to examine the CIA’s interrogation program will revisit long-dormant abuse cases involving the agency’s civilian contractors, bringing new attention to a little-known but controversial element of the Bush administration’s war on terrorism

“Civilian contractors used by the CIA at secret overseas facilities were accused of detainee abuses and deaths in a series of cases in the years following the U.S.-led invasions of Afghanistan and Iraq, but only one was ever prosecuted.”

Michael Steele is the gift that keeps on giving. Besides the garbled interview on NPR, he put out a survey asking, among other things:

“It has been suggested that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system. Does this possibility concern you?”

IMO, there’s another problem with the Breuer declaration and it hasn’t been hit on much, as best I can tell.

Breuer is head of DOJ’s Crim Div.

DOJ specifically determined that DOJ’s Crim Div needed to be excluded from supervision of the Libby case. Because of a plethora of conflicts and because Congress was breathing down their necks, DOJ did not put Crim Div in the chain of decision making on the Libby case. DOJ’s actions show DOJ decided that Crim Div was not competent (in a legal sense, not a functioning sense) to handle the Libby case.

Instead, DOJ set up a separate chain of decision making for the case – one that started with Comey as Acting AG and then went to Fitzgerald. Later, when Comey left, there was a delegation to Margolis.

So with respect to a case that was specifically determined to NOT be appropriate for handling through Crim Div, DOJ has offered up a declaration of the head of Crim Div as to what should happen with respect to the case. I’d have to call that an incompetent declaration even if Breuer didn’t have other conflicts.

DOJ carved Crim Div and other elements out of the decision making chain on this case of its own doing and on its own determinations and for good cause. To reinsert Crim Div at this juncture as somehow competent to make declarations on how the case information should be treated, when it was walled off from decision making on the case, makes no sense and I can’t figure out a foundation for it. Main Justice’s Crim Div was made as much a stranger to this litigation as I am.

Where are the declarations from those that DOJ determined had the competency to make determinations about the case? Comey’s successor(s) (Margolis – and I’ve always wondered if it stayed there) and Fitzgerald.

And where are the objections to the declarations proferred by parts of DOJ that, due to the type of case involved, DOJ itself had walled off from the litigation?

Heaven forbid I should park by the barn to unload feed instead of in the driveway. The first GSD to notice that “our car” is parked “in the wrong place” apparently wins a Karmic prize and the others have to wail in misery that they missed out.

I don’t know about that. If you have read previous transcripts of Sullivan in this very case, he is VERY aware of and concerned about competency issues with the government’s affiants. In fact, it was that exact issue that caused them to submit the Breuer affidavit in the first place. This argument already has gone somewhere with Sullivan in this case and on this issue, that is the whole point here.

Legalized corruption of the kind Bush introduced into the DoJ is like mold in a damp cellar: impossible to get out or to remove the taint unless extraordinary measures are applied. Mr. Obama, however, is happiest to let the taps leak and the mold proliferate. A Chicago pol indeed. What will we do in 2012, other than work to defeat Rahm’s Blue Dogs and replace them with progressive Congresscritters?

I think you’re right and the longer it lingers, the more extreme the measures would need to be to really address the problems, but the more extreme the measures, the less likely they will be implemented.

I’m kind of thinking about running a write in campaign in 2012 for the Dog Whisperer.

“a guy whose most direct experience pertaining to this issue was an unsuccessful attempt to suppress testimony and representing someone in this very case”

was — hell: IS –

“the very best guy at DOJ they could come up with to make”

this PARTICULAR crappy

“argument to Judge Sullivan”.

I also think that:

[a] fearless leader deserves reportage kudos for once again showing her dogged fearlessness in taking smart, direct steps to resolve the foundational issue left dangling from the earlier post-and-parry [namely: WTF did Breuer “do” to earn that earlier fee?]

[Totally unnecessary for most here, but a worthwhile reminder: this is no ordinary MSM-dependent blogger leading us here, folks.]

[c] the resolution to which — though it certainly should have consequences if it were to turn out Breuer has been unethical in this — is both strictly and more purposively not a shark, but a red herring.

This might seem pedantic [which of course means if it’s off base, the fall from it is bound to be harder], but I think it’s worthwhile going back to consider what Judge Sullivan was saying — or asking for [& if “asking for”, perhaps only technically].

He was telling DOJ essentially: you’re pitching this argument, and I’m telling you: I’m not catching. Now, maybe it’s because you, and those of you DOJOs trying to make this argument, don’t know understand you’re own argument; because if so, you’d realize it doesn’t make logical, rational or experiential sense to me. But I’m human, and I’m willing to admit both that & that my own experience might be too narrow to see to the end of this little corridor of horrors you’re trying to get me to believe in. So tell you what: I’m giving you a chance to go find someone who has actually been in that corridor, or near enough to be able to convey with credibility the existence of the superficially nonsensical, irrational, fanciful beasties you’re telling me are in it or down past the end of it.

Seen in that sense, the issue of lawyer conflict or none MAY be important, or at least is of interest in the ‘weighing’ of the proffered perspective [which is starting out lighter than a feather & doesn’t seemed to have packed on any poundage since], but either way, even then, is not practically disqualifying to the task set.

However, the task set is right out of the Mad Hatter’s tea party — & Judge Sullivan is not in attendance there. His role is more analagous [not entirely, but still closer to that of] the Times’ critic in the front row, struggling to figure out how to convey the sense of the nonsense to readers who might wonder at whether the play is suitable for young impressionable minds, or even not-yet-ready for prime time.

Seen in that sense, the problem with the declarator having such a conflict as Breuer MIGHT have [& Ms ew’s discovery of failure to quickly respond to queries on such does pack a Twinky or two on to suspicion on that front] arises in an oblique manner: Since the proposition is facially PICK ONE OR MORE [a] illogical [b] irrational [c] suspiciously convenient [d] contra-experiential [e] nonsensical [f] absurd … etc … it MUST be open to the opposing parties, and to the presiding judge on behalf of the Third Branch, to make a fully unrestricted inquiry as to the true depth of experience & bona fides & what have you actually possessed by this purportedly wizardly sage counsel
[presumably probing with utensils more effective than suggested by Monty Python’s Spanish Inquisitors’ pointy-edged cushion] –

which takes on a new set of problems if the wizard has actual knowledge, direct or indirect; though little if anything to the dilemma to be addressed as framed by Judge Sullivan.

The ultimate problem is — to me at least; “appears to be” is more suitably cautious — that the beasties suggested are entirely fictional; so, yes: it IS [thus] conceivable that Breuer is the one DOJO best suited to portraying said fictional beasties.

The portion of the rule of conduct that you quoted makes clear that it is not enough that the new matter be related to the old matter, that a conflict can only arise if the new client’s interests are “materially adverse to the interests of the former client.” What is left out from the quote is any explanation of what it means for the interests to be “materially adverse.” From my experience, interests are only materially adverse when the lawyer or firm was in a position to receive privileged information from the former client that is relevant to the new matter and could put the former client at a disadvantage in a new suit against the former client brought by the firm. So, if a firm represented Company A two years ago in defending a breach of contract action, if the firm no longer represents Company A today, there is nothing stopping the firm from suing Company A on behalf of Company B for an unrelated antitrust claim, for example. The firm does not even need a waiver from Company A.

In Breuer’s case, he is not representing the DOJ against Kirakou, so he is not even acting in a manner that is adverse to his former client (Kirakou), let alone in a manner that is materially adverse. The fact that the non-privileged communications of Cheney are at the heart of both matters is irrelevant.

At the end of the day, what you are really complaining about is the fact that Breuer has switched from demanding disclosure of Cheney conversations to defending against disclosure of the same Cheney conversations. Advocating opposite positions at different times does not give rise to a conflict of interest.

First off, you are making presumptions that may or may not be valid, and you list no indicia that you have other than lay information that would be insufficient for such a conclusion (do you?).

Secondly, my main complaint is that Breuer has engaged in clear cut lack of candor with the tribunal (court) in not disclosing his and his previous clients’ biases and predispositions when making his affidavit. What you say, even if falsely assumed correct for the sake of argument, does not countermand that.

I am interested, however, in your assertion that at one point Breuer was “demanding disclosure”, what is your factual basis for that part of your claim?

To all that, I find myself increasingly interested in how it comes about that someone with Breuer’s ’standards’ — not to mention his own views on such — gets into his current position of responsibility in Holder’s army. It’s not as if he was drafted.

No clue; it is I guess a plum, if somewhat incongruous, position. You really expect that position to be filled by somebody with at least substantial AUSA experience, if not more; wouldn’t you think? The closest Breuer gets is being a buck rookie ADA in Manhattan upon graduation from law school; not exactly Federal prosecutorial experience.

Um, no I’m not (and I acknowledge your point about interest in the post itself).

Breuer was NEVER demanding disclosure of Cheney conversations. He was trying–successfully–to keep his client off the stand so he didn’t have to tell his side of the “gathering information for Cheney” story.

But it DOES mean that the guy making a totally bogus argument about the detrimental effect this will have for prosecutions that flies in the face of Cheney’s cooperation itself may in fact have old interests he’s representing, rather than that of a neutral observer.

You see, the argument that the government has interests in not releasing Cheney’s interview is pathetically bad. So one might ask, why are we making the argument. Why is Breuer making an argument that is laughable on its face.

That makes his past advocating for precisely the same outcome he’s now arguing relevant, if not an ethical conflict.

It’s getting pretty obvious that the DC bar is not being held to its own published ethical standards. In a sunshine Republic, there’d be a housecleaning of the judiciary in the DC circuit. But there are black clouds over the Republic at the moment…

“detrimental effect this will have for prosecutions ….. have old interests he’s representing, rather than that of a neutral observer.”EW

Maybe someone should review and reconsider “ethical conflicts” concerning past cases involving current AG Eric Holder, who spent 2001-2008 at Covington and Burling, the same firm with whom Breuer is affiliated.

Michael Chertoff joined this same firm this spring,March 2009,just for the record.

I wonder if Holder and Breuer were in the Clinton Whitehouse administration together?

Lanny A. Breuer was confirmed as the Criminal Division’s Assistant Attorney General on April 20, 2009.

Mr. Breuer began his career in 1985 as an Assistant District Attorney in Manhattan, where he prosecuted various criminal cases, including murder, gang violence, armed robbery, child abuse, burglary, white collar crime and larceny.
In 1989, he joined Covington & Burling LLP, where he became a Partner in 1995 and served as co-chair of the White Collar Defense and Investigations practice group. At Covington, Mr. Breuer specialized in white collar criminal and complex civil litigation, internal corporate investigations, congressional investigations, antitrust cartel proceedings, and other matters involving high-profile legal, political, and public relations risks.

From 1997 to 1999, Mr. Breuer left Covington to serve as Special Counsel to President William J. Clinton.
(US DOJ website)

Eric Holder was Deputy Attorney General in the Clinton Administration under Janet Reno from 1997-2001,after which Holder joined Covington and Burling(Wiki)

Yes, it would be safe to say that they were in the Clinton Whitehouse at the same time.